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CASE NO.: Contempt Petition (civil)  81 of 2000

PETITIONER: Common Cause ’A Registered Society, Etc.                 

RESPONDENT: Union of India & Ors., Etc

DATE OF JUDGMENT: 28/09/2005

BENCH: S. N. Variava,Dr. AR. Lakshmanan & S. H. Kapadia

JUDGMENT: JUDGMENT                                         

O R D E R CONTEMPT PETITION (C) NO. 81 OF 2000 IN W.P. (C) NO. 821 OF 1990 [With Contempt Petition (C) No. 88 of 2000 in W.P. (C) No.  821 of 1990 and W.P. (C) No. 320 of 1993 and I.A. No. 7 in  W.P. (C) No. 821 of 1990 and W.P. (C) No. 320 of 1993]

       The two Contempt Petitions and the I.A. can be disposed off by  this common Order.  All of them deal with the question whether the  action of the Bar Associations, i.e., the Delhi High Court Bar  Association and the Supreme Court Bar Association, in visiting the  Advocates, who refused to participate in the strike call, with punitive  action of suspension and the action of the Bar Council of Delhi passing  a resolution which inter alia proposes to take against lawyers who did  not participate in the strike call, amounts to contempt of the Judgment  of this Court in the case of Common Cause ’A Registered Society vs.  Union of India reported in (1995) 1 Scale 6.            The concerned events in these matters took place during 1999  and 2000 and since then there has been no repetition of the acts of  the type alleged.   Thus, apart from reiterating the well-settled legal  position, we do not propose to take any further action.            The question of lawyers’ going on strike has been a subject  matter in a number of decisions of this Court.   All of them have been  considered in the Judgment of a Constitution Bench of this Court in the  case of Ex. Capt. Harish Uppal vs. Union of India reported in (2003) 2  SCC 45.  In this case, the Court also noted the directions, which were  issued by this Court in the case of Common Cause ’A Registered  Society (supra).   The said directions are to the following effect:         "(1) In the rare instance where any association of  lawyers including statutory Bar Councils considers it  imperative to call upon and/or advise members of the legal  profession to abstain from appearing in courts on any  occasion, it must be left open to any individual  member/members of that association to be free to appear  without let, fear or hindrance or any other coercive steps.                  (2) No such member who appears in court or  otherwise practices his legal profession, shall be visited  with any adverse or penal consequences whatever, by any  association of lawyers, and shall not suffer any expulsion  or threat of expulsion therefrom.

       (3) The above will not preclude other forms of

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protest by practicing lawyers in court such as, for instance,  wearing of armbands and other forms of protest which in  no way interrupt or disrupt the court proceedings or  adversely affect the interest of the litigant.  Any such form  of protest shall not however be derogatory to the court or  to the profession.

       (4) Office-bearers of a Bar Association (including Bar  Council) responsible for taking decisions mentioned in  clause (1) above shall ensure that such decisions are  implemented in the spirit of what is stated in clauses (1),  (2) and (3) above."

Even though these directions were passed as an interim measure they  were made an Order of the Court.  In this case, it was hoped that the  Bar Council of India would incorporate the above clauses in the Bar  Council of India (Conduct and Disciplinary) Rules.  Unfortunately, even  after all these years, the Bar Council of India has not deemed it fit to  incorporate those directions into its Rules.  However, Mr. Krishnamani  made a statement, on behalf of the Bar Council of India, that a  meeting has been called by the Bar Council of India on 18th October,  2005 in order to consider what is to be done with regard to Lawyers’  Strike. It is hoped that now at least better sense will prevail and the  Bar Council of India incorporates the above clauses in the Bar Council  of India (Conduct and Disciplinary) Rules.          The Constitution Bench has, in Ex. Capt. Harish Uppal’s case  (Supra), culled out the law in the following terms: "20. Thus the law is already well settled. It is the duty of  every Advocate who has accepted a brief to attend trial,  even though it may go on day to day for a prolonged  period. It is also settled law that a lawyer who has  accepted a brief cannot refuse to attend Court because a  boycott call is given by the Bar Association. It is settled  law that it is unprofessional as well as unbecoming for a  lawyer who has accepted a brief to refuse to attend Court  even in pursuance of a call for strike or boycott by the Bar  Association or the Bar Council. It is settled law that Courts  are under an obligation to hear and decide cases brought  before it and cannot adjourn matters merely because  lawyers are on strike. The law is that it is the duty and  obligation of Courts to go on with matters or otherwise it  would tantamount to becoming a privy to the strike. It is  also settled law that if a resolution is passed by Bar  Associations expressing want of confidence in judicial  officers it would amount to scandalising the Courts to  undermine its authority and thereby the Advocates will  have committed contempt of Court. Lawyers have known,  at least since Mahabir Singh’s case (supra) that if they  participate in a boycott or a strike, their action is ex facie  bad in view of the declaration of law by this Court. A  lawyer’s duty is to boldly ignore a call for strike or boycott  of Court/s. Lawyers have also known, at least since Roman  Services’ case, that the Advocates would be answerable for  the consequences suffered by their clients if the non- appearance was solely on grounds of a strike call.  21.     It must also be remembered that an Advocate is an  officer of the Court and enjoys special status in society.  Advocates have obligations and duties to ensure smooth  functioning of the Court. They owe a duty to their client.  Strikes interfere with administration of justice. They  cannot thus disrupt Court proceedings and put interest of  their clients in jeopardy.         xxx                     xxx                     xxx 34.     One last thing which must be mentioned is that the  right of appearance in Courts is still within the control and

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jurisdiction of Courts. Section 30 of the Advocates Act has  not been brought into force and rightly so. Control of  conduct in Court can only be within the domain of Courts.  Thus Article 145 of the Constitution of India gives to the  Supreme Court and Section 34 of the Advocates Act gives  to the High Court power to frame rules including rules  regarding condition on which a person (including an  Advocate) can practice in the Supreme Court and/or in the  High Court and Courts subordinate thereto. Many Courts  have framed rules in this behalf. Such a rule would be  valid and binding on all. Let the Bar take note that unless  self restraint is exercised, Courts may now have to  consider framing specific rules debarring Advocates, guilty  of contempt and/or unprofessional or unbecoming conduct,  from appearing before the Courts. Such a rule if framed  would not have anything to do with the disciplinary  jurisdiction of Bar Councils. It would be concerning the  dignity and orderly functioning of the Courts. The right of  the advocate to practise envelopes a lot of acts to be  performed by him in discharge of his professional duties.  Apart from appearing in the Courts he can be consulted by  his clients, he can give his legal opinion whenever sought  for, he can draft instruments, pleadings, affidavits or any  other documents, he can participate in any conference  involving legal discussions, he can work in any office or  firm as a legal officer, he can appear for clients before an  arbitrator or arbitrators etc. Such a rule would have  nothing to do with all the acts done by an advocate during  his practice. He may even file Vakalat on behalf of client  even though his appearance inside the Court is not  permitted. Conduct in Court is a matter concerning the  Court and hence the Bar Council cannot claim that what  should happen inside the Court could also be regulated by  them in exercise of their disciplinary powers. The right to  practice, no doubt, is the genus of which the right to  appear and conduct cases in the Court may be a specie.  But the right to appear and conduct cases in the Court is a  matter on which the Court must and does have major  supervisory and controlling power. Hence Courts cannot be  and are not divested of control of supervision of conduct in  Court merely because it may involve the right of an  advocate. A rule can stipulate that a person who has  committed contempt of Court or has behaved  unprofessionally and in an unbecoming manner will not  have the right to continue to appear and plead and  conduct cases in Courts. The Bar Councils cannot overrule  such a regulation concerning the orderly conduct of Court  proceedings. On the contrary it will be their duty to see  that such a rule is strictly abided by. Courts of law are  structured in such a design as to evoke respect and  reverence to the majesty of law and justice. The  machinery for dispensation of justice according to law is  operated by the Court. Proceedings inside the Courts are  always expected to be held in a dignified and orderly  manner. The very sight of an advocate, who is guilty of  Contempt of Court or of unbecoming or unprofessional  conduct, standing in the Court would erode the dignity of  the Court and even corrode the majesty of it besides  impairing the confidence of the public in the efficacy of the  institution of the Courts. The power to frame such rules  should not be confused with the right to practise law.  While the Bar Council can exercise control over the latter,  the Courts are in control of the former. This distinction is  clearly brought out by the difference in language in Section  49 of the Advocates Act on the one hand and Article 145 of

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the Constitution of India and Section 34(1) of the  Advocates Act on the other. Section 49 merely empowers  the Bar Council to frame rules laying down conditions  subject to which an Advocate shall have a right to practice  i.e. do all the other acts set out above. However, Article  145 of the Constitution of India empowers the Supreme  Court to make rules for regulating this practice and  procedure of the Court including inter alia rules as to  persons practising before this Court. Similarly Section 34  of the Advocates Act empowers High Courts to frame rules,  inter alia to lay down conditions on which an Advocate  shall be permitted to practice in Courts. Article 145 of the  Constitution of India and Section 34 of the Advocates Act  clearly show that there is no absolute right to an Advocate  to appear in a Court. An Advocate appears in a Court  subject to such conditions as are laid down by the Court. It  must be remembered that Section 30 has not been  brought into force and this also shows that there is no  absolute right to appear in a Court. Even if Section 30  were to be brought into force control of proceedings in  Court will always remain with the Court. Thus even then  the right to appear in Court will be subject to complying  with conditions laid down by Courts just as practice outside  Courts would be subject to conditions laid down by Bar  Council of India. There is thus no conflict or clash between  other provisions of the Advocates Act on the one hand and  Section 34 or Article 145 of the Constitution of India on the  other.  35.     In conclusion it is held that lawyers have no right to  go on strike or give a call for boycott, not even on a token  strike. The protest, if any is required, can only be by giving  press statements, TV interviews carrying out of Court  premises banners and/or placards, wearing black or white  or any colour arm bands, peaceful protect marches outside  and away from Court premises, going on dharnas or relay  facts etc. It is held that lawyers holding Vakalats on behalf  of their clients cannot not attend Courts in pursuance to a  call for strike or boycott. All lawyers must bodily refuse to  abide by any call for strike or boycott. No lawyer can be  visited with any adverse consequences by the Association  or the Council and no threat or coercion of any nature  including that of expulsion can be held out. It is held that  no Bar Council or Bar Association can permit calling of a  meeting for purposes of considering a call for strike or  boycott and requisition, if any, for such meeting must be  ignored. It is held that only in the rarest of rare cases  where the dignity, integrity and independence of the Bar  and/or the Bench are at stake, Courts may ignore (turn a  blind eye) to a protest abstention from work for not more  than one day. It is being clarified that it will be for the  Court to decide whether or not the issue involves dignity or  integrity or independence of the Bar and/or the Bench.  Therefore in such cases the President of the Bar must first  consult the Chief Justice or the District Judge before  Advocate decide to absent themselves from Court. The  decision of the Chief Justice or the District Judge would be  final and have to be abided by the Bar. It is held that  Courts are under no obligation to adjourn matters because  lawyers are on strike. On the contrary, it is the duty of all  Courts to go on with matters on their boards even in the  absence of lawyers. In other words, Courts must not be  privy to strikes or calls for boycotts. It is held that if a  lawyer, holding a Vakalat of a client, abstains from  attending Court due to a strike call, he shall be personally  liable to pay costs which shall be addition to damages

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which he might have to pay his client for loss suffered by  him.  36.     It is now hoped that with the above clarifications,  there will be no strikes and/or calls for boycott. It is hoped  that better sense will prevail and self restraint will be  exercised. The petitions stand disposed of accordingly." The Court also dealt with the role of Bar Councils on the following  terms:         "25.    In the case of Supreme Court Bar Association  v. Union of India reported in (1998) 4 SCC 409 (1998 AIR  SCW 1706 : AIR 1998 SC 1995), it has been held that  professional misconduct may also amount to Contempt of  Court (para 21). It has further been held as follows:  "79. An advocate who is found guilty of Contempt of  Court may also, as already noticed, be guilty of  professional misconduct in a given case but it is for  the Bar Council of the State or Bar Council of India to  punish that advocate by either debarring him from  practice or suspending his licence, as may be  warranted, in the facts and circumstances of each  case. The learned Solicitor General informed us that  there have been cases where the Bar Council of India  taking note of the contumacious and objectionable  conduct of an advocate, had initiated disciplinary  proceedings against him and even punished him for  "professional misconduct", on the basis of his having  been found guilty of committing Contempt of Court.  We do not entertain any doubt that the Bar Council  of the State or Bar Council of India, as the case may  be, when apprised of the established contumacious  conduct of an advocate by the High Court or by this  Court, would rise to the occasion, and take  appropriate action against such an advocate. Under  Article 144 of the Constitution all authorities, civil  and judicial, in the territory of India shall act in aid of  the Supreme Court". The Bar Council which performs  a public duty and is charged with the obligation to  protect the dignity of the profession and maintain  professional standards and etiquette is also obliged  to act "in aid of the Supreme Court". It must,  whenever facts warrant, rise to the occasion and  discharge its duties uninfluenced by the position of  the contemner advocate. It must act in accordance  with the prescribed procedure, whenever its  attention is drawn by this Court to the contumacious  and unbecoming conduct of an advocate which has  the tendency to interfere with due administration of  justice. It is possible for the High Courts also to draw  the attention of the Bar Council of the State to a  case of professional misconduct of a contemner  advocate to enable the State Bar Council to proceed  in the manner prescribed by the Act and the Rules  framed thereunder. There is no justification to  assume that the Bar Councils would not rise to the  occasion, as they are equally responsible to uphold  the dignity of the Courts and the majesty of law and  prevent any interference in the administration  justice. Learned counsel for the parties present  before us do not dispute and rightly so that  whenever a Court of record records its findings about  the conduct of an advocate while finding him guilty  of committing Contempt of Court and desires or  refers the matter to be considered by the Bar Council  concerned, appropriate action should be initiated by  the Bar Council concerned in accordance with law

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with a view to maintain the dignity of the Courts and  to uphold the majesty of law and professional  standards and etiquette. Nothing is more destructive  of public confidence in the administration of justice  than incivility, rudeness of disrespectful conduct on  the part of a counsel towards the Court or disregard  by the Court of the privileges of the Bar. In case the  Bar Council, even after receiving "reference" from  the Court, falls to take action against the advocate  concerned, this Court might consider invoking its  powers under Section 38 of the Act by sending for  the record of the proceedings from the Bar Council  and passing appropriate orders. Of course, the  appellate powers under Section 38 would be  available to this Court only and not to the High  Courts. We, however, hope that such a situation  would not arise.  80. In a given case it may be possible, for this Court  of the High Court, to prevent the contemner  advocate before it till he purges himself of the  contempt but that is much different from suspending  or revoking his licence or debarring him to practise  as an advocate. In a case of contemptuous,  contumacious, unbecoming or blameworthy conduct  of an Advocate on Record, this Court possesses  jurisdiction, under the Supreme Court Rules itself, to  withdraw his privilege to practice as an Advocate-on- Record because that privilege is conferred by this  Court and the power to grant the privilege includes  the power to revoke or suspend it. The withdrawal of  that privilege, however, does not amount to  suspending or revoking his licence to practice as an  advocate in other Courts of Tribunals."  Thus a Constitution Bench of this Court has held that the  Bar Councils are expected to rise to the occasion as they  are responsible to uphold the dignity of Courts and  majesty of law and to prevent interference in  administration of justice. In our view it is the duty of Bar  Councils to ensure that there is no unprofessional and/or  unbecoming conduct. This being their duty no Bar Council  can even consider giving a call for strike or a call for  boycott. It follows that the Bar Councils and even Bar  Associations can never consider or take seriously any  requisition calling for a meeting to consider a call for a  strike or a call for boycott. Such requisitions should be  consigned to the place where they belong viz. the waste  paper basket. In case any Association call for a strike or a  call for boycott the concerned State Bar Council and on  their failure the Bar Council of India must immediately  take disciplinary action against the Advocates who give a  call for strike and if the Committee Members permit calling  of a meeting for such purpose against the Committee  Members. Further it is the duty of every Advocate to bodily  ignore a call for strike or boycott.          26.     It must also be noted that Courts are not  powerless or helpless. Section 38 of the Advocates Act  provides that even in disciplinary matters the final  Appellate Authority is the Supreme Court. Thus even if the  Bar Councils do not rise to the occasion and perform their  duties by taking disciplinary action on a complaint from a  client against an advocate for non-appearance by reason  of a call for strike or boycott, on an Appeal the Supreme  Court can and will. Apart from this, as set out in Roman  Services’ case, every Court now should and must mulct.  Advocates who hold Vakalats but still refrain from

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attending Courts in pursuance of a strike call with costs.  Such costs would be in addition to the damages which the  Advocate may have to pay for the loss suffered by his  client by reason of his non-appearance."  

       Apart from reiterating the above law, we do not propose to take  any further action.  The Contempt Notices stand discharged.

       The Contempt Petitions and I. A. stand disposed off accordingly.